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Congress

Senate Taking Early Lead In Privacy Debate

March 15, 2011

The Senate Commerce Committee will begin debate Wednesday on consumer online privacy as one of the panel's key members works on legislation that would require firms to tell consumers more, and offer more choices, about what information is being collected about them.

Federal Trade Commission Chairman Jon Leibowitz and Lawrence Strickling, administrator of the Commerce Department's National Telecommunications and Information Administration, are among those scheduled to testify. Strickling is likely to give the Obama administration's backing for privacy legislation by Congress, according to several sources following the issue.

Collared at a conference Tuesday sponsored by the Direct Marketing Association, NTIA Associate Administrator Daniel Weitzner would not comment on whether the administration would come out in support of privacy legislation.

In its draft privacy report released in December, the Commerce Department did not take a stand on whether lawmakers should enact privacy legislation and instead called for comment on the issue. In earlier drafts of that report, however, the department did call for legislation but that language was dropped after inter-agency consultation on the report, according to industry sources.

The FTC in a separate staff privacy report issued a few weeks before the Commerce report was released also declined to take a stand on whether Congress should enact baseline privacy legislation, also leaving the issue up for public input.

The FTC, however, did endorse creation of a do-not-track mechanism giving consumers a way to opt out of being tracked while they surf the Web, an idea that has been staunchly opposed by online advertisers and marketers.

A handful of privacy bills have been introduced this Congress. Senate Commerce Communications Subcommittee Chairman John Kerry, D-Mass., is currently drafting his own privacy bill that is similar in many ways to a measure introduced last month by Rep. Bobby Rush, D-Ill.

According to the latest draft of the Kerry measure, obtained by Tech Daily Dose, the bill would require firms to provide more details about what information is being collected and how it is used; ensure the information is well secured; and allow consumers to opt out of having personally identifiable information collected and used.

It would require an opt-in for the collection and use of sensitive information such as financial or health data and for the transfer of information to third parties except for those that participate in an FTC-approved self regulatory program.

Unlike the Rush bill, the draft Kerry measure treats Internet protocol addresses differently from other personal information and does not apply all the bill's provisions to IP addresses. Another key difference from the Rush bill is that the Kerry draft does not grant the FTC as much rulemaking authority and does not allow consumers to sue firms that violate the bill's provisions.

The current Kerry draft is supported by such firms as Intel, which along with Microsoft and eBay have called on Congress to pass baseline privacy legislation. Microsoft Vice President and Deputy General Counsel Erich Andersen is among the private sector witnesses slated to testify at Wednesday's hearing.

"What industry needs is federal privacy legislation that sets forth baseline privacy protections for transparency, consumer control, and security that are not specific to any one technology, industry, or business model," Andersen said in his written testimony for the hearing. "Privacy protections that apply across sectors would provide consistent baseline protections for consumers, and simplify compliance for businesses that increasingly operate across those sectors."

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